Effort to boost open records enforcement has attorney general backing

Sunday

A legislative proposal that has the backing of the Attorney General would make it easier to investigate allegations of improper redactions of public records by governmental agencies.

If the legislation advances, prosecutors would be able to more quickly get to the bottom of claims that details of documents have been improperly withheld.

Just weeks ago, Kansas State University released nearly a dozen heavily redacted emails to The Topeka Capital-Journal. The redactions have drawn condemnation from Senate Minority Leader Anthony Hensley and scrutiny from First Amendment lawyer Mike Merriam.

Senate Bill 206 gives additional tools to prosecutors as they investigate potential open records law violations. Currently, county or district attorneys and the attorney general are tasked with investigating alleged open records violations. In order to determine whether a document has been improperly redacted or withheld, the prosecutor needs to review the full, unredacted record.

However, Republican Attorney General Derek Schmidt said accused violators often are hesitant to turn over unredacted records because they fear the records then will be improperly released. Under the legislation, prosecutors would be required to respect assertions of confidentiality by the alleged violator — meaning the prosecutor would be prohibited from releasing the documents without a court order, and reassuring worried agencies.

"This provision allays that concern and allows a full investigation in circumstances such as this, with the release ultimately being subject to judicial determination as it is under current law," Schmidt told lawmakers this past week.

The League of Kansas Municipalities expressed concerns about a portion of the legislation that would require public agencies to pay for the costs of investigations into violations. They said the requirement could suppress some agencies from taking their cases to court if they believe they have done nothing wrong.

"We believe the current standard, requiring attorney fees if the court finds the public agency did not act in good faith or without a reasonable basis in fact or law, is sufficient and should remain law," Nicole Proulx Aiken, legal counsel for the League, told the committee.

In addition, the bill — which has had a hearing in the Senate Judiciary Committee — seeks to boost open records training for government employees. Courts or the attorney general would be able to require those who violate either the open meetings or open records law to complete training.

The attorney general would have the power to review and approve training programs.

"This is not a circumstance where only attorney general-approve trainings could be conducted. Rather, the notion here is that qualified training programs could contain a ‘stamp of approval’ from the attorney general," Schmidt said in testimony. "Currently, there is nothing standard about the trainings provided by various entities, individuals, organizations or others throughout the state."

Schmidt said he would establish an online training system, modeled after a program used by Ohio’s attorney general. In Ohio, the attorney general’s website offers online training as an alternative to a three-hour, in-person course.

Kent Kornish with the Kansas Association of Broadcasters said in written testimony said the bill will help ensure open records and open meetings laws are taken seriously. The association takes part in annual summer training put on by the attorney general’s office.

"KOMA and KORA are not that complicated, but based on questions I hear at the training sessions each year, it’s obvious more people need reviews, and Senate Bill 206 will provide the Attorney General’s office the opportunity to reach more governmental employees and elected officials," Kornish said.

Lawmakers on the Senate Judiciary Committee are expected to work on the bill sometime next week. Chairman Sen. Jeff King, R-Independence, said he didn’t anticipate any amendments.

King said, while he can’t speak for the committee as a whole, he hadn’t seen any opposition expressed and he supports the measure.

"It seemed to be a common-sense approach that was agreed on by all sides for making sure we accomplish the goal of the statute, which is keeping meetings open, keeping information open, helping people learn how to comply and then punishing those who are serial violators," King said.

Never miss a story

Choose the plan that's right for you.
Digital access or digital and print delivery.